Talk about almost blowing a great career before it
even got off the ground... again.
had clearly come perilously close to being driven
from the business by the suits at Atari Unlimited
as a result of my participation in the legendary KC
Munchkin/Pac-Man Trial (see "My First Trial")
in the early 80s. But for whatever reason, Atari,
then under the leadership of Michael Moone, was very
classy about the whole thing. Moone was a good-looking,
albeit somewhat plastic character - at one point I
half-suspected that Atari's advanced systems department
had slapped him together down in the basement one
stormy night. He's also a guy who nobody seems to
remember. Oh, you can locate him on Google and confirm
his existence, but the next time I hear someone refer
to "The Moone Years" at Atari, it'll be
any case, I did survive, only to do the same damned
thing all over again almost a decade later. But first
a caveat of sorts: I do want to make clear that the
side I took in each of my three expert witness litigations
represented the party in whose case I believed. And
given the power of the companies whose corporate shoes
I was breaking, my sense of rectitude could have proven
cold comfort had Atari, Nintendo or Capcom been vindictive
- or ballsy - enough to try and bury me. But for whatever
reason, the three powerful companies against whom
I gave testimony and/or depositions never, so far
as I know, ever suggested the possibility of taking
revenge on a lone, big-mouthed journalist.
my second trip through the litigation sausage grinder,
therefore, I once again pushed my luck, tempted fate
and tugged real hard on Superman's cape by cavalierly
volunteering my services to the Lewis Galoob Toy Company
at the 1990 Summer CES (SCES) in Chicago.
Game Genie was Galoob's first entry into the electronic
gaming world, but I was familiar with them from all
the Toy Fairs I'd attended back in New York City in
the 80s. Also, Galoob's arrival in the electronic
entertainment field meant that they had to hire some
familiar faces, people who had been around the business,
and of course I was known to them.
'90 SCES as being a big peripherals show. Mattel's
silly Power Glove and Broderbund's inane U-Force joystick
were both laying ostrich-sized eggs with the press,
the distributors, and the retailers, but it was this
item dubbed the Game Genie that virtually everybody
with smarts in the entire industry fixated on as the
best of show in the peripherals category.
was late in the life cycle of the Nintendo Entertainment
System (NES), and a significant segment of its users
had become frighteningly skilled at playing NES games.
At least their growing skill frightened the game producers.
This was, after all, the age of the Platform Game.
Publishers would acquire a license or create an original
intellectual property and then drop these characters
into an endless series of similarly-designed playfields
comprising horizontally scrolling levels (ie, platforms),
power-ups, enemies and ropes/chutes/ladders, via which
the player-character could move from level to level.
Dave Crane's Pitfall is acknowledged as the first
scrolling platform videogame, but games such as Space
Panic (Universal), Miner 2049er (Bill Hogue) and Jumpman
(Epyx) had explored the possibilities of platform-style
play within a non-scrolling playfield years earlier.
the NES became a phenomenon in the late 80s, it was
unlike the previous generation of videogames in one
very significant area: it eschewed the joystick. No
longer was direction the primary component of the
games. Direction was assigned to the left thumb and
basically limited on-screen movement to up, down,
left and right. The right hand, meanwhile, was introduced
to the new primary gaming paradigm - button mashing!
Suddenly the timing with which a player allowed their
character to leap across a pit was much more important
than steering that character to a precise jump point.
Miyamoto is universally regarded as the game design
visionary who endowed platform games with the interface
nuances that made the genre so popular for so long.
And we can see that the interface provided by the
NES was ideal for those purposes. In that sense -
although it did not scroll, but rather redrew a new
landscape when the character reached the far right
of the screen - Smurf Adventure on the previous generation's
Colecovision may have been among the most influential
games ever created.
any case, platform games were everywhere. Sometimes
the perspective was slightly isometric but mostly
it was plain 2D. And advancements came like a cool
breeze in the desert heat - infrequently and with
little long term impact. The brute fact could be seen
by anyone with eyes: as the 90s dawned, platform games
had become a creative plague and a demographic nightmare
within the industry.
these 2-D platform games dominating the market to
an almost unimaginable degree, players were quick
to discover that tricks and techniques mastered in
one platform game were often transferable to all platform
games. These videogame gunslingers would boast how
they'd "conquered" this or that platform
game in a couple of hours or less. The developers,
in turn, got all macho about their not being able
to turn out difficult enough games. So of course they
went overboard and began producing videogame contests
that even an Arcade Houdini couldn't stand against.
if the designers couldn't find creative ways to make
the games harder, that was no problem, they'd just
cheat. You see, at the end of each level of a platform
game the player-character had to defeat a "Boss"
(the biggest, baddest monster on that level) in order
to advance to the next platform. And how hard is it
to simply jigger the Boss's hit point parameters to
make it virtually unkillable? Takes a second, maybe
two to change the number of shots required to kill
the Boss from "10" to "100".
a result, most NES gamers had a closet full of cartridges
that they had never even played halfway through because
they couldn't beat the sixth level boss or maneuver
through the Acid Bogs of Bowtheria on a wooden raft.
Game magazines were filling up with tips and special
Easter Egg codes while entire lines of books known
as Official Strategy Guides were beginning to generate
dollar signs on the spreadsheets of publishers like
Ben Dominitz, whose Prima Publishing raked in mega-bucks
through the mid-90s by telling players how to actually
complete their games (in minute detail and with an
abundance of accompanying playfields and diagrams).
only were videogames becoming elitist insofar as only
perhaps the top 5% of players were sufficiently skilled
to actually experience more than a taste of the program,
but the whole idea of gaming as an interactive family
experience was being lost. Whereas the early Atari
2600 games came with dozens of game variants and a
rainbow of skill levels, most NES games from the late
80s and early 90s traditionally came in two flavors:
Hard As Hell and Fahgettaboutit. The 2600 had even
offered individual skill settings for each player
on its console. Nintendo and its vassals, on the other
hand, had hard-wired their games to the skill sets
of 14-year old males.
when fathers and sons or brothers and sisters sat
down to play the latest platform twitch game during
the last years of the NES, it wasn't even vaguely
competitive. Between tapping the tips in the game
magazines and scarfing the skinny from his buddies
who had already "conquered" the latest hot
game, the adolescent or teen male gamer always had
the winning edge.
Game Genie, however, was distinct from the various
mind-controllers and glove controllers and virtual
steering wheels which, at best, worked well on only
one or two game genres. This was a piece of hardware
with an infinite upside. By using the Genie as a physical
interface between the NES and its software, players
could change up to three features (three wishes -
it's a genie, remember) in any single game. For example,
players could grant themselves any number of lives,
speed up their on-screen surrogate and allow their
character to literally fly above any and all obstacles.
These modifications were generated by having the player
enter a line of code for each of their three selections.
These codes appeared in the product's Programming
Manual and in an additional Code Book which came with
the Game Genie. Subsequently, Galoob intended to (and,
in fact, did) produce more of these Code Books as
new games were released.
Alert: For those who care, the Game Genie's secret
was its ability to block the value for a single byte
of data sent by the software to the NES system's CPU
and substitute the new value selected by the gamer.
A key element of Galoob's case lay in the fact that
the Genie did not actually change any of the data
in the game cartridge; the alterations lasted only
until the end of that play session at which point
the game defaulted to its original program.
immediately loved the Game Genie.
thought about how I would be able to look through
an entire game before I reviewed it without badgering
the PR people for cheat codes. And I thought about
all those half-played games sitting in closets the
world over that could be given new life. You see,
I've always had this weird belief that if you buy
an electronic game, you have the right to see everything
that's in that game. If you must cheat to do so, what
law are you breaking? The mentality of game developers,
however, was not unlike a book publisher expecting
consumers to purchase a mystery novel that required
the reader to take a test before granting them an
access code to unlock the final chapter.
remember sitting in one of Galoob's meeting rooms
at that CES, predicting that they could sell millions
of these things through the coming Christmas season.
And that's when the Galoob PR people broke the news:
"Well, Nintendo hates it. It looks like they're
going to file for a preliminary injunction to keep
it out of stores this Christmas." This was not
good news for Galoob as Christmas '90 looked like
the last shot at a big year for any NES produce. As
it was, Sega released its Genesis two years before
Nintendo finally felt it could risk cutting the legs
out from under its iconic NES by shipping the Super
Famicom (SNES) to North America.
you may not get this out for Christmas?" I asked,
getting rather pissed off in the process.
if Nintendo gets its injunction."
had been almost a decade since I had risked my career
by testifying against Atari. But still, I am the Eternal
Asshole. Not only do I agree to testify but I always
wind up testifying against the most powerful force
in the industry at the time. No doubt if I were to
be hired today as an expert witness, I would wind
up siding against EA, Sony or perhaps both. In fact,
when EA purchased exclusive rights to the NFL recently,
I did feel that old twinge again. But that's a story
for another time
any case, because I am the Eternal Asshole, I never
learn. So I opened my yap and declared to the Galoob
PR people assembled: "That's outrageous! I've
worked as an expert witness before, so if you need
anyone to testify against Nintendo in this case, call
accepted their props and back pats with the assurance
of someone who figures nobody's going to remember
any of this by the time they get home from CES.
they would. I barely had unpacked the various game-related
shirts, yo-yos, key chains and other CES gewgaws before
the phone was ringing. Rather than pass me directly
into the hands of lawyers, however, the folks at Galoob
were thoughtful enough to give me the coward's way
out. "We really appreciated you volunteering
to testify," they said. "But we would certainly
understand if you felt unable to do this."
course, I took the blue pill and within 24 hours representatives
from the law firm of Howard, Rice, Nemerovski, Canady,
Robertson & Falk (henceforth known simply as Howard,
Rice) were in touch on behalf of Galoob.
case proved quite different from my other two adventures
in Expert Witnessville in that Nintendo had already
essentially lost the case before I ever entered a
courtroom. In fact, I don't think I ever actually
saw a courtroom in this case. I made many trips to
Embarcadero Plaza, where the Howard, Rice offices
were located and the main event was my deposition
with Patricia Thayer of Howard Rice by my side and
John Missing, on behalf of Brobeck, Phleger &
Harrison, representing NoA, across the table.
Rice, you see, had been able to reverse the preliminary
injunction which Nintendo of America had used to keep
the Game Genie off the shelves the previous Christmas
and ultimately won a dismissal of Nintendo's copyright
issues altogether. This judgment was later affirmed
role in this case, therefore, was as one of the experts
selected by Galoob to help determine the amount of
damages Nintendo had cost them through its injunction.
Of course, between depositions and such, we overstepped
the purely financial issues on more than one occasion.
follows are excerpts from that deposition, taken November
I would like to talk about the entire five-
or six-year history of KKW; and if it has changed
over time and you want to break it down, you can do
No. As I say, there are periods when we've emphasized
journalism more than the other ends of the business,
but the consulting has been pretty steady.
So consulting has consisted of analysis of games,
redesign of games, and preparation of instructions
for playing of games?
When you say analysis of a beta copy or analysis of
a game, what do you mean by that?
Again, it's very similar to the process you would
undergo in reviewing a game; but rather than orienting
it toward the consumer, you're orienting it toward
the publisher. So you're telling the publisher there
are a certain number of similar games out there, for
example, and how their game fits in within that category,
how close they are to state of the art in terms of
graphics, how well the sound effects work within the
context of the game, that sort of material.
Do you provide opinions or analysis with respect to
the likely success of a game?
That's part of the analysis stage?
It's called market perspective.
So you provide market perspective in connection with
your consulting services.
What does market perspective consist of?
[It] consists of placing this product into the context,
in the existing context of the game market.
What aspects of the game do you look at in doing that?
Sound, graphics, animation, play value
the interface works.
Do you look at price or pricing? Is that something
you consider in writing a market perspective?
No, generally not. Occasionally we will be specifically
asked if this is a budget product or not, and we will
- in that case, we will give our opinion on the project
and how much it should be priced at.
I gather from what you've been saying that the consulting
services are certainly provided with respect to software?
Have you provided consulting services with respect
We've done some work with joystick manufacturers,
but it's been very limited.
And which joystick manufacturers are those?
this point we nail down the fact that KKW did some
consulting for Wico and another company - it was Suncom,
I believe - that I couldn't recall at the time, but
that joystick consulting was not exactly our major
line of work. Of course, Mr. Missing must have thought
this wonderful news since it would seem to indicate
that KKW had virtually no experience with regard to
peripherals. It was quickly apparent, however, that
joysticks and the Game Genie were totally apples and
oranges - it was only the fact that both were marketed
under the broad term "peripherals" that
gave them anything in common. Now we moved on to the
Numbers Game portion of the deposition
With respect to how many games or titles of software
has KKW rendered consulting services?
I have no idea. Many.
More than 30?
Many more than.
Less than 500?
We can say fewer than 500. [I loved correcting his
I'm trying to get the parameters you're comfortable
You got them.
Can you narrow it any more than that, or would it
It would require total speculation.
So KKW has provided consulting services with respect
to anywhere from 30 to 500 games over its history?
Would the games come from game manufacturers or from
publishers or any one segment of the industry?
Well the publishers and the manufacturers - I mean,
I don't understand the distinction.
Who hires you to perform these consulting services
with respect to a given game?
It could be the developer. It could be the publisher.
It depends on who feels that the game needs help.
You can be hired by anybody; obviously, anybody who
has a game he wants some help with
is a likely
client? [Is he calling me a whore? -Bill]
That's correct. [Guess he was. -Bill]
Are you ever hired directly by companies, such as
those companies for whose systems you devised games,
such as Commodore or Atari or IBM or NEC?
So those companies have, themselves, hired you as
consultants with respect to certain of their game
titles? [He does a very good job of casting this mundane
information in a sinister light, don't you think?
Is there one company that has hired you more often
than others for your consulting services?
Well, it's generally more often the publishers who
are coming to us, and they're often coming to us with
multiple SKUs on the same game. So we may be looking
at an IBM version of a game at the same time we're
looking at a Nintendo version of a game, and at the
same time doing two sets of analyses, as if they were
two separate projects.
Has KKW designed any game to play on 16-bit systems?
[By "KKW", Mr. Missing actually meant Subway
Software, the design branch of KKW. -Bill]
Not yet. [I must have had a major brain fart at this
point since Subway Software had already designed quite
a few 16-bit games by that point. -Bill]
Has KKW perform [sic] consulting services for games
intended for play on 16-bit systems?
Probably a couple dozen.
And the rest would have been designed for use on 8-bit
That's correct, or computers.
So the vast preponderance of the titles on which KKW
has provided consulting services have been for use
on systems other than 16-bit systems?
Has KKW ever performed any consulting services for
Lewis Galoob Toys, Inc.? [He's going for the big one
here, boys! -Bill]
Thayer [My Lawyer]: You mean other than in connection
with this litigation?
Missing: Yes, other than providing expert testimony.
No. [Haw-haw. -Bill]
Aside from any expert testimony that KKW or you may
be providing for Lewis Galoob Toys, have you or KKW
had any professional relationship with Lewis Galoob
Toys? [I think he's calling me a hooker again
Would that be true of Mr. Katz as well?
And Miss Worley?
deposition went on for hours, but finally climaxed
with the following exchanger:]
Let's look at the final opinion, line 25 and 26 of
Exhibit 6. [You say] Game Genie will achieve far less
market penetration due to it's [sic] exclusion from
the market in 1990 and 1991. What do you mean by "market
penetration"? [He said "penetration".
Sales, sales to owners of NES systems. I mean, clearly,
if it had gone on sale last Christmas, when the audience
was ready to buy it, when the NES was still perceived
as a viable, live system, then its market penetration
would by now be extremely solid.
the system is being born under much shakier conditions.
It's being sent out into a world where the NES is
perceived as a dying system, and people are going
to be much less likely to spend money on a peripheral
for a dying system than they are for one they perceive
as a healthy system.
whether, in fact
your hypothesis [mentioned
previously] is correct or not almost doesn't matter,
because the perception will become the reality, and
the perception is that 8-bit technology is on the
way out. If 16-bit technology is here, then 8-bit
technology is old technology, and Americans don't
like old technology. You could still sell a lot of
systems, but you're selling them so people can buy
software that no one is making any money on.
Are you aware of any return or defect data for the
Are you familiar with the magazine Nintendo Power?
Yes, I am.
Do you see that magazine as a competitor of any of
the magazines you've worked for?
In a sense, it is, yes, though it's [sic] sort of
half and half. It's also a promotional device. It's
sort of a half newsletter magazine, company magazine,
and half editorial publication. It's kind of perceived
by the public as an educational publication, but it
is in fact a promotional device.
Have you ever published anything in Nintendo Power?
Thayer: Have you ever attempted to?
To sum up, if I can, because I want to make sure I
understand your opinion about the penetration the
Game Genie will achieve in fact in 1991 and in the
future, you believe it's less now than it would have
been, due to the advent of the 16-bit technology and,
in part, what you've described at various times as
a kind of natural life cycle of technology and games.
Yes. Electronic entertainment technology does not
live forever. It has a clearly discernable, empirically
evident life cycle, just because our society moves
at such a rapid pace in terms of technology. There
are already 32-bit things in the works. The only thing
holding them up is the fear that if a 32-bit system
enters the market at this time, every person in America
will run screaming into the night.
You said individual products also have a life cycle
or life span, and I think you said in the Game Genie
it would have been two or three years if it would
have been released in 1990; is that correct?
Yes, again, linking it to the NES's life cycle.
Do you believe that the Game Genie's life cycle, the
two-to-three year life cycle, will be less in light
of the injunction, now that it's being released for
the first time in 1991 - I'm sorry, the answer to
that was yes. [This is the crux of the entire case
and he not only answers his own question, but gives
the answer that hurts his own case. I liked this guy.
the life cycle, in your view, of the Game Genie -
did it begin at the time of its announcement as opposed
to the time of its actual introduction?
That's a very interesting question. I think, on the
part of the public, the perception is this product
was created last year. They read about it last year
in all the magazines. They heard about it from all
their friends. They talked about it. A year of its
life cycle is gone. It's being born as if it had remained
in the womb an extra 12 months.
What's the basis for your belief that the public in
general was aware of [Game Genie's] existence last
Just the incredible amount of reaction and interest
that all the electronic game magazines drew, that
all the companies related that produced Nintendo-related
think it's quite obvious that anyone who cares at
all about what's happening in electronic gaming knew
there was a product called a Game Genie and that
it was going to come out, and it didn't. They may
not know the details of the litigation, but I believe
the majority of game players were aware of its existence.
Is that true of casual players?
I believe so.
And what's your basis for your belief that casual
players were aware of it?
Word of mouth is very sterong in this business. It's
stronger than in any other industry with which I am
we used to try to calibrate our pass-along readership
on Electronic Games magazine; and according to the
surveys that we got from our readers, the number was
so high we never even related it to anyone, because
no one would have believed it. The pass-along readership
was like ten; ten people were reading it for everyone
who was buying it.
my belief that still holds true for video game magazines.
So if you have a universe of maybe half a million
people buying video game magazines and you multiply
that by a factor of 10 on pass-along readership, or
a kid comes into school and tells his friend, "Did
you hear about the Game Genie?" and he tells
two friends and they tell two friends, like the [famous
90s shampoo] commercial, every game player, even the
casual ones, are hearing about this thing called the
words continued briefly but, in essence, that was
the end of my deposition. And just for the record,
Galoob obtained a $15 million judgment after prevailing
on the liability stuff, as the damages judgment following
a second trial to recover their injunction security.
This judgment was later affirmed by the Ninth Circuit.
Game Genie came out and did damn well for itself,
even spawning a competitor, the Game Shark. This type
of system soon became a staple in the video game world,
moving on to higher powered systems and signaling
a major loss to the then-mighty Nintendo.
two for two, but because I am the Eternal Asshole,
I still have one more battle to fight - and this one
was the worst of them all.
quite a bit more fairly interesting testimony from
the Galoob-Nintendo trial, but a somewhat lengthier
and slightly re-written version of this article -
along with a revamped "My First Trial" and,
eventually, "My Third Trial" - will be appearing
some time in the near future in a collection of essays
based on my experiences in the game world. Entitled
"Confessions of The Game Doctor" it will
be published by Rolenta Press - stay tuned for details!
In the third installment of
Kunkel takes on Capcom, the makers of the highly popular
Street Fighter series in an copyright infringement
lawsuit on behalf of Data East and the game Fighter's
© 2005 by Bill Kunkel